Divorce Liberation

With New York on the brink of being the last state to allow no-fault divorce, whose fault was it that it took so long?

Until last week, when a vote in the State Senate began the process of changing the law, New York’s approach to divorce may have seemed like an invention of the Old Testament. While every other state in the union had moved to a no-fault divorce system
at least a quarter of a century ago, politely allowing couples to end their marriages without vengeful testimony of wrongdoing, New York was stuck in a fault-divorce structure, which, in its attempts to assign blame, often forced one spouse to lie and say he or she committed adultery or some other biblical sin just to meet the legal criteria to dissolve the marriage.

One might assume this system lingered in New York for much too long because of the influence of the Catholic Church or a bunch of retrograde upstate Republicans. (In the last thirteen years, religious conservatives resurrected the option of fault divorces in Arkansas, Arizona, and Louisiana in the form of “covenant” marriages, where, going in, husband and wife essentially agree to not divorce unless they see evidence of cheating, domestic violence, or felonious behavior.) But in fact, it wasn’t just the church or conservative coalitions that stood in the way of reforming New York’s divorce laws. It was also New York’s liberal constituencies—and the state’s history of a commitment to liberal social policy itself.

Besides the church, the only other major group to lobby against the no-fault legislation was the New York State branch of the National Organization for Women. Over the years, “the opposition has come largely from women’s groups,” says Marsha Garrison, a professor at Brooklyn Law School and secretary-general of the International Society of Family Law, “and the last major push for no-fault reform was by the Republicans, not the Democrats.” Specifically, a state senator from Long Island named Michael Tully pushed no-fault legislation in 1989 because his wife had refused for years to grant him a divorce, and he obviously couldn’t change his residence to make it happen. “Women’s groups,” says Garrison, “killed the bill.”

For the best-intentioned reasons, of course. They believed that fault divorce helped women, imagining that women were more often resisting the dissolution of their marriages than men. But the opposite, it turns out, is true: A well-known study in 2000 by economists Margaret Brinig and Douglas Allen showed that women initiate divorce proceedings two-thirds of the time. (And apart from the Colonial period, when many state legislatures had to approve a divorce, women have more or less consistently asked for divorce in higher numbers, says Brinig.) Women’s groups were also haunted by a series of California studies from the late seventies and early eighties that said the state’s switch to a no-fault divorce policy had hurt women financially. The problem, says Garrison, is that California had revised its property-distribution and spousal-support laws at exactly the same time, so it was impossible to identify the true cause of women’s disenfranchisement. After New York had similarly revised its laws, Garrison replicated the California study. She found that the outcomes were exactly the same—even though we didn’t offer the option of no-fault divorce.

“Downstate legislators have to tread very carefully when it comes to women’s issues,” says a New York judge who’s well versed in matrimonial law. “No one wants to be portrayed as anti-woman.”

It wasn’t until 2004 that the state Women’s Bar Association got behind no-fault. When the measure passed the State Senate last week, the group cheered, as did most women’s organizations, having said it would spare families the financial and emotional devastation wrought “by one spouse’s refusal to give up ‘control’ by consenting to a divorce.”

If only the state chapter of now could join them. now already compromised its credibility nationally by railing against the Botox tax, which is bad enough; but by embracing fault divorces, which keep people locked in marriages they don’t wish for … that’s advocating paralysis of a much more insidious sort.